Somebody needs to tell the federal government that this is football season. While I was driving to Tuscaloosa for the Alabama-Ole Miss football game, the Department of Defense, FAR Council and GSA issued a FAR deviation clause to assist in enforcement of President Biden’s vaccine mandate. Here are the big takeaways.
- Comply with the Safer Federal Work Force Task Force Guidance. President Biden’s executive order required development of a Federal Acquisition Regulation (“FAR”) clause to implement the vaccine mandate. The FAR Council released that clause at FAR 52.223-99. Most significantly, the clause says contractors “shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safe Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors.” Here is the link to the FAR Council guidance: FAR Council Guidance. The Department of Defense language, found in DFARS Clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009), is virtually identical. The emphasized language is crucial because it means that contractors must comply with future guidance issued by the Task Force.
- Get ready for modifications to existing contracts. The Department of Defense Guidance (found here: DOD) and the GSA Guidance (found here: GSA) each discuss bilateral modification of existing contracts. Moreover, when the Department of the Navy sent this guidance in an e-mail to one of my clients, it included the following statement: “This clause will be added to nearly all solicitations and new and existing contracts.” (emphasis added). This strongly suggests that existing contracts will be modified to include the vaccine mandate. Contractors should be prepared to negotiate any increased costs incurred because of the mandate.
- GSA: Look for modifications before November 14, 2021. GSA contracting officers are supposed to “complete as many modifications as possible by November 14, 2021.” For IDIQ contracts, if a modification is not returned by November 14, contracting officers can take “interim actions” including “temporarily hiding contractor information on GSA websites and/or e-tools” and “Flagging contractors that have not accepted the modification.”
- December 8, 2021 looks like a “real” date. When the Safer Federal Workforce Task Force issued its guidance, I gave my initial thoughts here: Blog on Mandate. My initial thought was that many contractors would have a grace period of sorts to get employees vaccinated. This was because the mandate only applied to new contracts, solicitations or options. I thought contractors might have some additional time because many contracts would not come up for renewal/option for months. The emphasis on modifications suggests that employers need to prepare for December 8.
- November 24, 2021 is the last date for the shot. The government isn’t cutting contractors any slack. The Department of the Navy’s e-mail started with this BLUF (“Bottom Line Up Front”): “For your planning and action purposes, the current guidance is that all covered Federal support contractor personnel will be required to be fully vaccinated by 08 December 2021. This means that by 08 December 2021 covered Federal support contractors must be at least two weeks past the second shot of a two-shot vaccine, or two weeks past the first shot of a one-shot vaccine.” In short, the last day for your employees to get the shot is November 24, 2021.
- What about employees who can’t get the vaccine because they recently had COVID? We have no direct guidance on this issue. Nevertheless, the CDC says that people can get the vaccine after their quarantine/isolation period ends: CDC FAQs. The CDC also explicitly says that people should wait 90 days to get vaccinated if they received monoclonal antibodies during their COVID treatment. If an employees must delay a vaccination for health reasons, I am advising employers to document the reason for delay (keeping that documentation confidential and separate from personnel files) and claim a temporary exemption for health reasons.
We still have received no guidance on the enforcement process for the vaccine mandate. I will keep you updated as a I learn more.